Smith v. Providence Health and Services - Oregon

In order to survive a motion of dismissal for failure to state a claim, some semblance of a claim must be presented. A loss of chance claim fails on that notion because it cannot establish that defendant's conduct was the likely cause of plaintiff's injuries, and because Oregon does not recognize loss of chance as a cognizable theory of relief at common law.

Smith appealed the lower court's granting of a motion to dismiss for failure to state a claim. On April 8th Smith went to Providence Hood River Memorial Hospital (Providence) within two hours of the onset of early
symptoms he believe to indicate a stroke. A CT scan proved negative and the attending physician sent him home indicating the cause was a sleep aid. Smith went to Providence the following day with increase head pain and visual problems. The same physician diagnosed him with a headache. On April 11th Smith saw a different physician for a follow-up appointment and was given an MRI which revealed substantial brain damage from a stroke. Smith has suffered permanent damage as a result of the stroke. Smith's case was dismissed from the lower court for failure to state a claim because the state of Oregon only recognizes a "loss of chance" case in instances of wrongful death. He appeals on the grounds that loss of chance is a cognizable theory of recovery in Oregon under common law. Plaintiff's complaint does not sufficiently allege that there is a reasonable probability that defendants' alleged negligent omissions resulted in his injury. Affirmed.